Candy-cane confiscation leaves sour aftertaste

The U.S. Supreme Court’s refusal to hear a First Amendment case has opened the door for public school officials to violate the religious rights of students with impunity, charges a non-profit legal advocacy group.

This week, the court denied Liberty Institute’s petition to hear oral arguments in the famous “candy cane” case, putting the religious freedoms of the nation’s 50 million public school students at risk, the group said.

“Officials can now engage in rampant discrimination and claim ignorance afterward. School officials can now be roving censors and hope the court agrees with them that they are a government official, and immune from liability,” said Hiram Sasser, director of litigation for Liberty Institute.

The case began in 2003 in Plano, Texas, when elementary students Jonathan Morgan and Michaela Wade attempted to pass out “goodie bags” during the school’s “winter break” parties before Christmas.

Michaela and Jonathan were told by school officials that the bags were banned from the classrooms because they contained a religious message.

Another student, Stephanie Versher, had tickets to a religious play confiscated by a principal who “threatened to kick Stephanie out of school” and call the police if she attempted to distribute them on campus. Officials also confiscated “Jesus” pencils she attempted to give her friends outside of the school building.

The families subsequently sued the school district alleging a blatant violation of the students’ First Amendment rights. While courts have agreed that the student’s rights were violated, the question then became whether school officials should face any accountability for their actions.

In 2010, a three judge panel of the 5th Circuit Court of Appeals ruled in favor of the students and said school officials were accountable for their actions. The following year, the full court upheld previous rulings that the student’s rights were violated, however it disagreed over the liability issue and granted officials immunity for their actions.

This week, the Supreme Court refused to take up the case, meaning the ruling absolving school officials of culpability for their actions stands.

Sasser says by refusing to take up the case, the court has essentially allowed school officials to ban religious or any other activity they do not like, knowing that by the time the issue is resolved, the date for the event will have already passed.

Jonathan Morgan, left, the boy banned from handing out candy cane pens to classmates when he was 8 years ago. He’s with Marie Barnett Snodgrass of the landmark Barnett v. West Virginia case.

“There was actual harm in this case. The sad thing is if you or I as a private citizen violated the law even if we thought it was confusing, we would be held responsible for our actions. Government officials are not automatically held responsible for their actions,” Sasser said. “The other side claims that officials are entitled to immunity unless the law is clearly established so that even a moron would know it is a violation of the law. In this case the court agreed with them.”

Sasser says that while it may be tempting to blame the issue on liberal judges, that is not entirely the case.

“You can’t just lay this problem at the foot of liberal judges. There are also conservative judges who think that government school officials should have a significant amount of power and no accountability,” he warned. “They are locked into thinking the public schools are like they were when they went to school and do not realize that indoctrination on controversial issues is taking place. The schools are taking positions on these controversial issues, and they typically are not friendly to Christian conservative students.”

He said, “Some of these conservative judges don’t understand that, and they tend to contribute to the problem.”

Shockingly, Sasser said Justice Clarence Thomas, who is known as a solid constitutionalist, is that type of judge.

“One of the problems on this case is that Justice Thomas thinks that students do not have First Amendment rights. That is already a knock against us in the conservative camp. I think he is influenced by his experience growing up, which is different than what is happening today. The problem is a lack of understanding about what is really going on in the public schools.”

Some have claimed the candy cane case was a victory for religious freedom since the courts ruled against the school’s handling of the incident, but Sasser says that is not so, noting that often these types of cases hang not on the law, but on which judge hears the case.

“Not every judge feels constrained by what the law is.”

In another case similar to the Plano incident, just this year a Wisconsin school told an elementary student that she would not be permitted to distribute valentines that contained a Christian message.

The second-grader, Dexter Thielhelm, had made homemade valentines consisting of a plastic water bottle filled with heart-shaped candy and a note that said “Jesus Loves You” along with the text of John 3:16.

Sasser said the Valentine’s Day case shows why the Supreme Court should have taken the case. The incident in Wisconsin took place months after the appeals court ruled that school officials were not accountable for this type of incident.

“That’s the problem when you give government officials a free pass on violating the law.”

He continued, “The trend we are seeing is a very dangerous combination where there are some judges who are not fond of religious speech and there are other judges who are fond of government officials exercising power and they want school officials to have lots of power,” he said. “Unfortunately the law is oftentimes not applied in a consistent way. It is based on the whims and desires of whatever judge ends up deciding the case. This is what happens when judges stop becoming referees and start becoming players.”